Appeal: Daily Maverick vs Parliament

Decision: Application for leave to appeal

Applicant: Daily Maverick and Marianne Merten

Respondent: Parliament/Mr Mothapo

Matter No: 3334/05/2017

  1. Mr Moloto Mothapo, Parliament’s spokesperson, lodged a complaint against Daily Maverick in respect of an article published on 19 May 2017 entitled “Securocracy, Parliament edition: Where the ceilings have eyes.” The article was written by one Ms Marianne Merten and was apparently also published online. It was about allegations that there were some cameras planted in the ceiling to spy on members of Parliament.  I shall refer to Mr Moloto and Parliament as “respondents”.  Because one Jillian Green submitted a response to the complaint on behalf of Daily Maverick, I shall refer to the Daily Maverick, Marianne Merten and Jillian Green collectively as “applicants”.  In a related application or applications, it will be noticed that I refuse to distinguish, and deal with separately, between the applicants or their responses as being independent of each other. I am not impressed with the artificial multiplication of parties, something which has resulted in unnecessary prolific documentation.  I refer here in advance to matters 4187/01/2019 and 4248/02/2019.  The above conduct has resulted in creating a huge confusion as to where the line between these matters has to be divided.  Furthermore, some documents are not dated, including Mr Mothapo’s complaint.  I loath working on undated documents.  I can only assume that his complaint was written between 19 May 2017 (date of the publication of the article) and 5 June 2017 (the date of an e-mail by Jillian Green in answer to the complaint.  To conclude the time frame in my mind, the Ombud’s Ruling was issued on 19 June 2017.
  2. In his Ruling, the Ombud says the “nub of Parliament’s complaint is that the Daily Maverick did not ask it for comment on some issues where the journalist was wrong or unfair ….” He goes on: “The alleged lack of a right of reply permeates the whole complaint.” The essence of the complaint was that Parliament had wrongly been made complicit in unlawful activities of members of the SAPS, as well as in the planting of spy cameras, both of which allegations were denied by Mr Mothapo, but to which no right of reply was given. It turned out the alleged spy cameras were no cameras after all, but some installed lights. I need not go into further details.  In the end, the Ombud dismissed some complaints; but ruled that the applicants breached articles 1.1, 1.8 and 1.9 and imposed a sanction: apology for neglecting to give Parliament the right of reply, and a reprimand.
  3. Submitted to me some time in May this year, is an application by the applicants for leave to appeal the Ombud’s Ruling. The application is by “Marianne Merten, Daily Maverick, Parliamentary Correspondent”.  I am unable to see the date of this application. Presumably it was made on 26 June 2017 as it was sent under coder of an email of that date. On the other hand, Parliament issued a statement on 20 June 2017 welcoming the Ombud’s Ruling.
  4. There seems to have been a lull until apparently 10 April 2019 when Mr Mothapo was asked through an e-mail of 10 April 2019 by Ms Khanyi Mndaweni of the Office of the Press Ombud to comment on the application for leave. In response, Mr Mothapo reiterates the respondents’ opposition to the application for leave to appeal.  It seems there was an oversight on the part of the Office of the Ombud to cause the application to be adjudicated expeditiously.  As this was through no fault on the part of any party, and because the complaint and the application for leave were both lodged in time with the office, I shall entertain the application.
  5. I have gone through the Ombud’s Ruling, bearing in mind the applicants’ submissions. I agree with the respondents that the Ombud properly applied his mind to the matter.  This was demonstrated for example by the reasons for which he rejected some of the complaints, while carefully articulating the reasons for his finding that articles 1.8 and 1.9 have been breached.  Take for example the following as the basis of the finding in relation to the two breaches:

At the meeting, I asked Merten why she did not ask Parliament about the ‘cameras’ and about the fact that four members of Police allegedly entered the precinct unannounced and unlawfully – which added to the implication that the institution was being eroded ….

In this regard the journalist (Merten)… retorted that:

  • Parliament could have responded to her article after its publication; and
  • a similar report in another newspaper was also published, but that Parliament did not complain about the article.

None of these reasons can weigh heavily enough, not even when considered together, to persuade me that she (the journalist) was not obliged to ask Parliament about these matters. …. In short, I believe that Merten (the journalist) should have asked Parliament for comment on the issue of the police entering the Parliamentary precinct as well as on the ‘cameras’.”  The Ombud found that by publishing as a fact that there were “cameras”, when this was not the case, article 1.1 of the code was also breached.  Article 1.9 was breached because, after reporting the existence of “cameras” as a fact, and despite a subsequent disprove, the applicants did not report this.

  1. The question arises whether in light of the above, there are reasonable prospects that the Appeals Panel would overturn the Ombud’s Ruling. I see no such prospects. The application for leave to appeal is therefore dismissed.

Dated this 19th day of June 2019

Judge B M Ngoepe, Chair, Appeals Panel

APOLOGY – https://www.dailymaverick.co.za/article/2017-05-22-apology-securocracy-parliament-edition-where-the-ceilings-have-eyes/